R v T No. Sccrm-98-292 Judgment No. S100

[1999] SASC 100

R V T

Trial By Judge Alone

LANDER J.

The Information

The accused was arraigned on an information containing three counts. They were:
1. Attempted murder.

Particulars of Offence
On 24 February 1998, at Port Augusta, attempted to murder Cecil Matthew Mayo.

2. Wounding with intent to do grievous bodily harm.
Particulars of Offence
......... On 24 February 1998, at Port Augusta, unlawfully and maliciously wounded Cecil Matthew Mayo with intent to do him grievous bodily harm.
3...... Armed Robbery
......... On 24 February 1998, at Port Augusta, being armed with an offensive weapon namely a knife robbed Cecil Matthew Mayo of a wallet and credit card to the value of $15, and money to the amount of $400.

Procedural Matters

The accused was born on 14 June 1980 and was at the time of the commission of the alleged offences a minor. On 3 December 1998, he was committed by the Youth Court to this Court pursuant to section 17(3)(a) of the Young Offenders Act.
The matter was listed for the Port Augusta circuit in this month.
On 23 February 1999, the accused filed an election pursuant to s7(1)(a) of the Juries Act to be tried by Judge alone on the charges contained in the information.
The election was accompanied by a certificate of a legal practitioner certifying that that legal practitioner had advised the accused of all matters relevant to him making an election pursuant to s7(1)(a) of the Juries Act.
The Juries Rules provide that when an accused person is committed for trial at the circuit sittings of the Supreme Court or the District Court, an election to be tried by Judge alone, together with a certificate of legal practitioner complying with r10, are to be filed at the Registry of the Court, within fourteen days of the accused person being committed for trial. Neither the election nor the certificate was filed within the time prescribed.
Rule 16 of the Juries Rules provides that a Judge can dispense with compliance with all or any of the requirements of the rules if the Judge is satisfied that there are special reasons for so doing or that it would appear unjust not to do so.
When the accused was arraigned, I indicated to his counsel, Mr Nitschke, that I had been provided with the statements and depositions in relation to this matter prior to the Court receiving the accused’s election under s7 of the Juries Act. I asked him whether in the light of the fact that I had read the statements and depositions his client wished to consider pursuing the election. He advised me that his client instructed him to pursue the election to be tried by Judge alone.
The Crown did not object to my dispensing with the requirements of r8(6) of the Juries Rules and I made an order accordingly. The matter thus proceeded before me as a trial by Judge alone.
A r9 notice was given by the accused in relation to the admissibility of evidence of a conversation between the accused and Detective Michael and Detective Bray which took place on 12 April 1998, first at 39 Hunter Crescent and secondly at the Port Augusta Police Station. The r9 application was abandoned before the commencement of the trial.

General Directions

Before I proceed to a consideration of the matter I should remind myself of matters which must always be born in mind by a trier of fact in a criminal trial.
The accused comes to this Court presumed to be innocent. That presumption remains unless at the end of the trial and after a consideration of the whole of the evidence and the addresses of counsel I conclude that he is guilty. I must approach my task without any preconception or prejudices or feelings of sympathy for or against any witness and, of course, for or against the accused.
The burden of proving the accused guilty lies wholly upon the Crown. The accused does not have to prove anything. If he puts forward a defence he does not have to prove it. He does not have to prove any explanation which he might offer. The Crown must prove each and every element of the offence and must disprove any defence or explanation. The burden of proof always lies upon the Crown and no burden ever lies upon the accused.
If the accused points to an explanation which is consistent with innocence he does not have to prove that. It is again for the Crown to disprove it or show that it is irrelevant. If the Crown cannot do that it has not proved its case.
The standard of proof which the Crown must meet is proof beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice. The accused cannot be convicted unless the Crown establishes each element of the offence beyond reasonable doubt and disproves any defence or explanation offered by the accused beyond reasonable doubt.
In these reasons where I speak of being satisfied or make a finding it must be understood that I am satisfied or have made a finding beyond reasonable doubt.

The Crime Scene

On 24 February 1998, Mr Mayo, who is now aged seventy-two years, lived at Unit 8, 1 Roberts Crescent, Port Augusta. Roberts Crescent runs pretty well north/south. The units in which Mr Mayo resided were at the northern end of the crescent and built directly across the Crescent so as to make the Crescent a “dead end” at that point. South of the units is Welby Street which runs east/west. It forms a junction with Roberts Crescent on its eastern side. Further south of Welby Street is Hunter Crescent which also runs east/west and also forms a junction with Roberts Crescent on its eastern side.
There is a footpath on both sides of Roberts Crescent.
There are street lights in Roberts Crescent. There is a street light just South of the units occupied by Mr Mayo. There is another street light on the north/eastern corner on the junction of Welby Street and Roberts Crescent and there is a spotlight mounted on a stobie pole just North of Hunter Crescent.
The Willsden Junior Primary School runs the entire western length of Roberts Crescent between the units occupied by Mr Mayo and Hunter Crescent. A Mrs Brewster occupies number 7 Roberts Crescent which is situated on the north eastern corner of the junction of Welby Street and Roberts Crescent.
On the 24 February 1998, the accused lived in 39 Hunter Crescent which is on the southern side of Hunter Crescent, a few houses east of the junction of Hunter Crescent and Roberts Crescent.
If one travels east from 39 Hunter Crescent, for a short distance, turns left, travels again for a short distance and then turn right and travel for a short distance one will reach 28 View Road.
West of the Willsden Junior Primary School and also running in a north/south direction is Abernethy Street. SC lived in 32 Abernethy Street on 24 February 1998.
Unit 8 is situated at the Northern end of Roberts Crescent. That is to say it is the unit closest to the end of Roberts Crescent. It consists of a lounge room, bedroom, kitchen and bathroom. Entry is obtained to the unit through the lounge room which is immediately adjacent to a porch. There is a light on the porch.
There are two doors exiting from the lounge room to the porch. The first is a security wire door. The second is a wooden door. The security door opens outwards, that is towards the porch, and the wooden door opens inwards into the lounge room.

The Crown Case As Opened

The Crown case was that at about 8:30 pm on the evening of Tuesday 24 February 1998, Mr Mayo was at home alone watching television. He answered a knock to the door. After opening both of the doors to which I have referred, a young male person forced his way into Mr Mayo’s home, pushing Mr Mayo to the floor. It was the Crown case that Mr Mayo was then stabbed on five occasions, four times to the left side of his back and once to the left side of the front of his chest directly in the area of the heart. The Crown case was that the last mentioned wound was life threatening. If it had been a little deeper it would have penetrated his heart.
During the attack the Crown case was that the intruder repeatedly demanded money. Mr Mayo took his wallet out of his pocket and threw it across the room. Mr Mayo then became aware of another person in the unit. He saw that person pick up his wallet and go through it. Shortly after, both male persons decamped from Mr Mayo’s unit.
Mrs Brewster, who lives at 7 Roberts Crescent, on the Crown case saw two male aboriginal youths running from the direction of Mr Mayo’s house. They ran straight past her. She saw them run along Roberts Crescent towards Hunter Crescent. Just south of Hunter Crescent they ran across a vacant property which is on the corner of Hunter Crescent and Roberts Crescent and ran in the direction of 39 Hunter Crescent.
It was the Crown case that the accused committed the crime in the company of KH, who is the accused’s cousin. The Crown case was that the accused admitted to two relatives and a friend that he had stabbed Mr Mayo.

Defence Case

The accused’s case was that he did not go to Mr Mayo’s place on 24 February 1998, nor in fact did his cousin KH. At no time on that night did either of them go anywhere near Mr Mayo’s unit. Neither of them committed the invasion, the stabbing or the robbery.
On the night of the crimes the accused was told by his uncle CB that the accused’s cousin AC had committed the offences. The next day AC threatened the accused that he would kick his and KH’s head in if he ‘dobbed’ him and EB in.
The accused told the Police that AC and EB committed the crimes.
It was the defence case that the accused did not have any conversation with any relatives or with his friend in which he admitted that he had stabbed Mr Mayo.

Elements Of The Offences

Attempted Murder

To establish the charge of attempted murder the Crown must prove three elements beyond reasonable doubt:-
(1)... An intent on the part of the accused to kill Mr Mayo;
(2)... An attempt by the accused to carry out that intention and
(3)... That the doing of the act or series of acts was unlawful.
Of course the Crown must first establish that it was the accused who stabbed Mr Mayo. The accused claims that he was not the person who stabbed Mr Mayo. In fact the stabbing was carried out, the accused says, by his cousins EB and AC.
The Crown therefore needs first to establish beyond reasonable doubt that the accused was the person who stabbed Mr Mayo and if that matter is established then the Crown must establish again beyond reasonable doubt each of the three elements which make up the offence of attempted murder.
I will address this in more detail later but there is no real dispute in relation to the second and third elements. There was no dispute that the stabbing of Mr Mayo would amount to an attempt if the Crown established that the accused carried out the stabbing with the requisite intention. Moreover, no-one has, for a moment, suggested that whoever carried out the stabbing did so lawfully.
There is a real dispute however whether the accused stabbed Mr Mayo. Even if he did the Crown needs to establish beyond reasonable doubt that the accused did so with an intention to kill.

Wounding With Intent To Do Grievous Bodily Harm

Wounding with intent to do grievous bodily harm only needs to be considered if the Crown has established beyond reasonable doubt that the accused stabbed Mr Mayo, but has not established one of the three elements of the offence of attempted murder. It would most likely arise in the event that the Crown has not been able to establish beyond reasonable doubt that the accused had an intention to kill Mr Mayo.
If I find that the Crown has proved that the accused did stab Mr Mayo but I have acquitted him in relation to the first charge, then I must consider this charge.
To establish this charge the Crown is required to prove four separate elements which go to make up the offence. The first is that the accused by a willed and conscious act in fact inflicted a wound upon the person of Mr Mayo. The second is that the accused inflicted that wound unlawfully. The third is that the accused inflicted the wound maliciously. And finally the fourth element is that the wound was inflicted with a specific intent of causing grievous bodily harm to Mr Mayo.
There is no real dispute that Mr Mayo suffered injuries which constitute a wound. As the evidence will disclose there was a breaking of the continuity of Mr Mayo’s skin through the full thickness of the skin. Moreover if I accept Mr Mayo’s evidence there is no doubt that the wounds were occasioned by the real, conscious and deliberate acts of his assailant. There can be no suggestion that the wounds inflicted upon him were accidental.
The second element, like the third element in the first charge, is simply not a matter of dispute. There is no suggestion that these wounds were inflicted lawfully.
Further, again if I accept Mr Mayo’s evidence there is no dispute that whoever stabbed Mr Mayo did so maliciously.
There is no doubt that Mr Mayo has suffered grievous bodily harm.
Mr Nitschke who appeared on behalf of the accused agreed that if I was to find that the accused did carry out the stabbing there was sufficient evidence to find that he intended to cause Mr Mayo really serious bodily harm.
I think, however, I need to consider the question of intoxication before concluding that the person who stabbed Mr Mayo necessarily intended to inflict grievous bodily harm.

Armed Robbery

To establish the offence of armed robbery the Crown must prove the following elements. First, that the accused at the time of the robbery had with him an offensive weapon or offensive instrument. There is no doubt that if I accept Mr Mayo’s evidence, and if I find the accused was the person who stabbed Mr Mayo, that the first element is made out. Mr Mayo was, on his evidence, stabbed by a very large knife. The knife would constitute an offensive weapon.
Secondly, the Crown would need to establish that Mr Mayo was robbed. In this case the Crown would need to establish that money was taken from Mr Mayo either by violence or by putting Mr Mayo in fear. Mr Mayo’s evidence is that he was stabbed on five occasions. There was no doubt he was subject to violence and was put in fear. He was robbed of more than $400.
In relation to this charge it was common ground that if I found it was the accused who invaded Mr Mayo’s unit, because of the circumstances in which Mr Mayo was robbed of that sum of $400, it would follow that the accused was guilty of armed robbery.

The Crown Witnesses

Mr Mayo is an elderly man, who I am quite certain was truthful in the evidence he gave. He said that whilst watching television on 24 February 1998 at about 8:30 pm, he heard a knock on the door. He opened both the wooden door and the security door and went outside of the security door where he saw a young man just outside the unit.
He said that the young man, who he thought was about twenty-five years of age, pushed his way into the unit and pushed him backwards. He was pushed hard enough to fall down and he fell down in a position near the door separating the bedroom and the lounge room.
He fell on his left elbow but managed to get himself up to a sitting position. He said that his attacker was immediately above him about a foot away. When he got himself up into a sitting position he was kicked on the right hand side of his body. Immediately after that his attacker began to stab him with a knife. Mr Mayo had noticed a knife carried by the attacker when the attacker entered the unit. Mr Mayo said the knife had about an eight inch blade and a handle of about three or four inches. The blade was about two inches wide with a smooth edge. He said he was stabbed four times in the back. It was either immediately before he was stabbed or whilst he was being stabbed that the person stabbing him said something to the effect that he had been after him for a long time.

The person then demanded money. Mr Mayo said in evidence in chief that he was stabbed four times in the back, and then stabbed in the chest near his heart. In cross examination he admitted he was not sure of the sequence. At the time he was stabbed he was still on the floor but was sitting up. He took his wallet out of his top pocket and threw it across the room. At that time he noticed there was a second person inside the unit. He said that person picked up the wallet and took money out of it; more than $400. The two men left shortly after. He said that before they left they went into the bedroom and searched for money.
He said the person who stabbed him was a fairly tall, dark lad. He was not able to say to what race the person belonged. He was not able to say what sort of build the person had or the colour of his hair. He thought the person was wearing jeans. Mr Mayo has not been able to identify anyone as being his attacker or the person who accompanied the attacker and took the money from his wallet. He was later shown a photograph board which contained the accused’s photograph. He could not identify the accused even though given every opportunity. That is not surprising having regard to the fact that Mr Mayo could not say the race to which his attacker belonged.
I accept Mr Mayo’s evidence in its entirety. I believe he is an honest man who did not attempt to embellish his evidence. He carefully kept himself to matters of which he could speak directly. He did not speculate in any way.
I am satisfied beyond reasonable doubt that two persons entered his unit and one of those persons with a knife inflicted five wounds to his body, four to his back and one to his chest near his heart. I am satisfied that the wound to his chest, near his heart, was life threatening.
I am further satisfied that he was robbed of a sum of money exceeding $400 by the two men, one of whom was armed and attacked him. The man who attacked him kicked him once and stabbed him on five occasions.
In cross examination Mr Mayo was pressed as to whether or not the person who stabbed him was carrying the knife in his left hand. He agreed that he told the Police that the person who stabbed him was carrying the knife in his left hand. He said, however, he could not be sure that that was the case. I think, having regard to the position of the wounds on Mr Mayo’s body, it is highly unlikely that his attacker was carrying the knife in his left hand. It would mean that his attacker could only have inflicted the wounds to his back if the attacker leant around the whole of Mr Mayo’s body and stabbed him from behind. That is because he was sitting up facing his attacker. I think that is highly unlikely. I think, having regard to the position of the wounds on Mr Mayo’s body, that the attacker was carrying the knife in his right hand. In the end nothing turned on which hand the attacker held the knife.
In any event, any uncertainty in Mr Mayo’s evidence in relation to the hand in which the knife was being carried does not cause me to question the reliability of Mr Mayo’s evidence.
Dr Singh, a general practitioner, gave evidence of his observations and treatment of Mr Mayo’s wounds. He described the wounds, including a further wound not mentioned by Mr Mayo, being a one and a half inch laceration to the left arm.
The lowest wound on Mr Mayo’s back at or near the ninth thoracic vertebra, was a convex wound one inch long and deep enough to expose the tip of the vertebra. The next lowest was below the scapula. It was two inches long and half an inch deep. The second highest wound was a straight line wound two inches long and half an inch deep. It exposed the muscles over the scapula and those muscles were partly cut.
The highest wound was towards the outer edge of the upper end of the scapula. It was two inches long and shallow. That wound did not need to be sutured but each of the other wounds on Mr Mayo’s back required suturing.
The wound to the front of Mr Mayo’s chest near the left nipple was the most serious. It was one and a quarter inches to one and a half inches long. At first observation it appeared shallow but when it was touched bubbles emitted from the wound. The presence of bubbles indicated that the lung had been perforated and that there was a possibility of internal haemorrhaging. Whilst Mr Mayo was being treated for this wound he suffered a coronary infarction, a heart attack.

The wound was very near to the heart and if the wound had been any deeper the heart would have been penetrated.
In Dr Singh’s opinion, all the wounds were caused by a sharp instrument. All wound edges were clean and neat; there was no jaggedness; indicating that the wounds were not caused by a serrated edged weapon.
I accept Dr Singh’s evidence. I am satisfied beyond reasonable doubt that Mr Mayo suffered the wounds described by Dr Singh. I am satisfied that the wound to the front of the body was life threatening and if it had been deeper it might have been fatal.
There is no doubt, and I so find, that Mr Mayo suffered grievous bodily harm.
Mrs Brewster, who lives at 7 Roberts Crescent, Port Augusta, was outside of the house at sometime between 8:30 pm and 9:00 pm, probably nearer to 9 o’clock. She saw two persons running purposely, as she put it, on the footpath on the Western side of Roberts Crescent. They crossed over Roberts Crescent near where Welby Avenue forms a junction with Roberts Crescent. She saw them then run along Roberts Crescent and leave Roberts Crescent just North of Hunter Crescent and run in the direction of 39 Hunter Crescent. She recognised that both of the persons were young, between the age of eighteen and early twenties. They were both part Aboriginal in appearance. They were both similarly dressed in dark coloured tracksuit pants with a broad white stripe, sneakers, dark coloured shirts and baseball caps. Both of them were of average build and slim.
She identified tracksuit pants, which were found by Police under the accused’s bed, as being of the kind that she believed that the two persons were wearing when they ran along Roberts Crescent. She also identified some sneakers also found in the accused’s bedroom. She thought they were like those being worn by the persons she saw.
Like Mr Mayo, she has been unable to identify the persons who she saw running along Roberts Crescent on 24 February 1998. She was also presented with the photographic array shown to Mr Mayo. She could not identify the accused even though she was given every opportunity.
I accept Mrs Brewster’s evidence. She was also an honest witness on the strength of her evidence. I find that two young males of part Aboriginal appearance, of average build and slim, ran south along Roberts Crescent and across Roberts Crescent near where Welby Street joins Roberts Crescent. They then continued to run south along Roberts Crescent along its eastern side and then ran across the vacant allotment on the corner of Hunter Crescent and Roberts Crescent. They ran in the direction of 39 Hunter Crescent. I accept her evidence that they ran purposely.
The accused lived at 39 Hunter Crescent with his parents and siblings. At the time of the offence KH also lived at that address.
The Crown called JB, who has been a friend of the accused for a number of years. He sold the accused a knife for $15.00, probably sometime shortly before Christmas 1997. It was about eight inches long with a black handle. It was chrome with a rubber coated handle. It had a smooth edge. He was able to say positively it was not the knife which was later found by Police under the accused’s bed. I accept his evidence. There was no contest that the accused had bought a knife from JB.
The Crown called three witnesses who deposed to conversations they had had with the accused. Two witnesses were relatives of the accused. The third witness was BSC, who was a friend of the accused. It was suggested he was also a relative but if that is so the relationship between the accused and that witness is somewhat obscure.
The accused’s cousin FT said that in early 1998 he read about the stabbing of Mr Mayo in the local newspaper. Sometime later he had a conversation with the accused, who told him not to tell anyone but that he had stabbed the old fellow.
FT is seventeen years of age. The conversation to which he deposed came to the attention of the Police when FT was detained in relation to a warrant about two weeks before the trial. At that time the Police Officers asked him if he knew anything about the accused and the stabbing of Mr Mayo. He then told the Police of the conversation.
It was put to FT, in cross examination, that he had a motive to lie. It was suggested to him that he and the accused had had a falling out some time prior to the date upon which Mr Mayo was attacked. It was put to him, in cross examination, that in about May or June of 1997 he and the accused had a physical fight. The fight arose out of allegations circulated about FT that he was seeing AT’s girlfriend. FT admitted that there was such a falling out and a physical fight. FT admitted that after that time he and AT were not as good friends as they had been before. He said, however, that after sometime had passed he began seeing the accused again because he and the accused had patched things up. There was some support for FT’s evidence in that regard. The accused called as part of his case CB. CB is the father of EB. He is an uncle of both the accused and FT. CB frequently visited the accused’s house. He said in cross examination that he saw FT at the accused’s house a couple of times a week leading up to the night Mr Mayo was stabbed.
It was put to FT that he had made up the story of the accused telling him that he had committed the crime to try and assist FT out of some trouble he was then having with the Police. It was that trouble, it was suggested, that led to his detention. He denied that he was making the story up.
There is no doubt that there were some inconsistencies in FT’s evidence. His account of how he came to tell the Police and the sequence in which he told them of these matters varied. I think there is an explanation for that. I believe that his immaturity and his cultural heritage induced him to agree to propositions in cross examination which were not strictly accurate as far as he was concerned.
Indeed, at one stage, when the inconsistencies were pointed out to him he asked the cross examiner if he could just say how it all happened and where he got picked up and how it happened from there. He then gave a perfectly lucid and straightforward account of how he was stopped by the Police and how he came to tell the Police of the statement that the accused had made to him sometime before. That account was entirely consistent with his evidence in chief.
There was one particular piece of FT’s evidence which Mr Nitschke relied upon as evidence of unreliability on the part of the witness. FT said that when he was interviewed by the police he was told by Detective Michael that if he did not say anything he could be charged with withholding information. It is not entirely clear when, on his account, he was told that. It may have been when he was in the police car, or at the police station, or it may have been on both occasions. In any event, his evidence was that such a threat was made to him.
Detective Michael was called, because he was the police officer who interrogated the accused. He was asked in cross examination by Mr Nitschke whether, at any stage during the time that he was with FT, he said anything to the effect that FT would get into trouble if he withheld information from the police. He said he did not.
Mr Nitschke relied upon that contradiction in the evidence between FT and Detective Michael. He said that I needed to resolve that contradiction and if I formed the conclusion that FT was wrong about what he claimed had been said then I ought to conclude that his evidence was unreliable.
I must say I cannot be sure what was said to FT. FT was under the influence of marijuana when he was interviewed by the police and in those circumstances may not have a perfect recollection of what was said. However, he was adamant that the words were used.
In the end I am not sure that the issue needs to be resolved at all because even if I concluded that Detective Michael did not say what FT claimed he had said, that would not, in my opinion, make FT’s evidence unreliable.
I am not persuaded by that contradiction in the evidence that FT’s evidence is unreliable.
The Crown called a further member of the accused’s extended family, ST. She is a cousin of AT. Her mother is AT’s father’s sister. However, in keeping with Aboriginal custom, she referred to AT as her brother. ST and AT have a good relationship. She said, frankly, that she loves him. She said it was because she loves him that she did not earlier report the substance of her evidence to the Police.
She said that she had a conversation with the accused. Her evidence was:
“Q     What was said?
A      That they hurt someone. I can’t really remember.
Q      When you said ‘they said’ who said it to you?
A      My brother, AT.
Q      Where did he say it to you?
A      In the laundry.
Q      Of whose house?
A      Hunter Crescent.
Q      When you said ‘they’ did he say who he was referring to?
A      No.
Q      Did he tell you any further details of what he had done?
A...... No, he just said that they hurt somebody, and I talked back to him and I said ‘youse be in big trouble’.
QDid he say how they hurt somebody?
A...... Yes.
QWhat did he say?
A...... We stabbed someone.
QDid he say who that someone was?
A...... No.
QHow did AT seem when he was telling you this.
A...... He wasn’t all nervous or anything. He just told me as a big sister.”
She said that at the time she received this information she was off her face and a bit drunk. She was not able to say when it was that she was told this and in particular if it was on the night of the stabbing or some other time. In cross examination she agreed that she was not able to say whether he said “we hurt someone” or “they hurt someone”.
EB and AC are cousins of both ST and the accused.
It was put to ST, in cross examination, that she and EB became boyfriend and girlfriend at one stage. She denied that but she admitted to having “a one night stand”.
It was suggested to her that she was lying about this conversation to protect EB who, it was suggested, committed the crime. In response to that suggestion ST said she did not “give a shit about EB”. It was put to her there was never any conversation between her and the accused. She denied that she had invented the conversation. It was suggested that EB and AC were the persons who had committed the offence, not the accused and not KH.
She agreed she saw AC that night. She said she saw blood on his clothes. She thought he had been in a fight. He was very drunk. She saw him give his girlfriend a head butt in the kitchen.
She said that the accused did not appear to be affected by alcohol at the time of the conversation. I later heard from the accomplice, KH, that the accused was staggering drunk. The evidence of ST and KH is inconsistent. The inconsistency might be due to the fact that both ST and KH claimed they were drunk. I believe that it would be safer to proceed on the basis that ST was wrong about her observations of the accused. In fact he was substantially affected by alcohol.
I do not believe that ST was lying about the conversation. I believe that she was telling the truth. I formed the distinct impression that she was a very reluctant witness and she was very reluctant to give evidence which she knew would implicate the accused. I accept her evidence that the conversation took place.
I accept her evidence that she was told either “we” or “they” had hurt someone and that either “we” or “they” had stabbed someone.
However, her evidence does not rise above the ambiguity inherent in it. I am left not knowing whether the accused said to her that “we” or “they” had stabbed and hurt someone. Whilst I believe ST’s evidence that a conversation took place I am not able to conclude whether the accused used the expression “we” or “they”. I do not think that ST’s response “Youse be in big trouble” cures that ambiguity. In those circumstances I am only prepared to use her evidence for concluding that a conversation took place between her and the accused. That in itself is not unimportant having regard to the accused’s evidence.
The Crown called a friend of the accused BSC, who is aged nineteen and lives in Port Augusta with his parents at 32 Abernethy Avenue which is the street which runs North and South on the other side of Willsden Primary School.
BSC has known the accused for two years or more and they used to see each other a couple of times a week.
Sometime in 1998 the accused showed BSC a knife. It was about 25 centimetres long from the handle to the tip of the blade. It was black with a silver metal blade. The blade was smooth on one side and it had a couple of “bumps on the back of it”.
BSC said that the knife which was subsequently found under the accused’s bed was not the knife he was shown by the accused.
BSC also deposed to a conversation he said that he had with the accused in relation to the stabbing of an elderly man in Roberts Crescent. BSC had heard about the incident from his father who had spoken to him of the incident in “a fair bit of detail”.
The conversation with the accused took place, so BSC said, in his bedroom at about 5-5:30pm on a day in March 1998. The accused and BSC had been watching television and they went to his bedroom to listen to some music.
Whilst in the bedroom he asked the accused whether he had heard of what had happened to Mr Mayo. I set out his evidence in relation to this conversation:
“Q How did the topic come up?
A...... I asked AT - I was just saying to him if he heard about what happened, because my father told me, and he said ‘yeah’ he knows.
QDid he tell you how he knew?
A...... He told me that he did it.
QCan you try and tell us, as best you can, the words that he used when he told you? If you can’t tell us the words, the gist of what he told you?
A...... He told me that him and his cousin went to the flat by the Willsden School and was trying to get in through the front window, and the old man, he must have heard people messing around out the front, and he went to the front wooden door and he told me that he got the screen door open, and when he opened that the man opened the big door and that’s how he got it.
QDid he tell you what happened to the old man?
A...... Yes, he said he stabbed him in the shoulder area, I think, around that area there.
WITNESS INDICATES ON LEFT SHOULDER
HIS HONOUR
QOn the left shoulder?
A...... One of the shoulders; I can’t remember. It was around that area.
EXAMINATION
Q...... You said he went with a cousin. Did he mention the cousin’s name?
AYes.
Q...... What name did he give you?
AK.
Q...... Did he say a surname?
AI know his surname; H.
Q...... Did you know a cousin of the accused at that time called K?
AYes, I’ve known him, yes.
Q...... Is that KH?
AYes.
Q...... Did the accused say anything to you, during the course of this conversation, about any money?
AYes.
Q...... What did he say?
AHe said that after he stabbed the old man he was on the ground, and that he was leaning over him and the old man reached in his pocket and said ‘Here, take my money’ and he gave him $400.
Q...... Did he say anything about what he did with that money?
ANo.
Q...... What was the accused’s tone of voice throughout this conversation?
ACan you please explain that?
Q...... Can you explain what his tone of voice was like? For example, did he sound happy, sad, or something else?
AI don’t know. He was just, like, having a conversation. He wasn’t happy, he wasn’t sad or nothing. He was just telling the conversation, the story.
Q...... Were you saying anything back to him as this conversation was going on?
AI was saying ‘Nah’ just stuff like that. That was about it.”
BSC’s account of the conversation with the accused contains a good deal of information. The conversation deposed to by BSC includes information which is accurate. For example, the method of entry is as described by Mr Mayo. The area in which the stab wound was inflicted is also consistent with the front chest wound inflicted on Mr Mayo.
The fact that the accused is said to have been accompanied by KH is also consistent with the evidence of KH, who admitted that he participated in the crime.
The evidence of the stabbing itself and the old man reaching into his pocket and saying; “Here take my money”, and giving him $400 is again consistent with Mr Mayo’s evidence and consistent with the amount that was stolen. The amount that was stolen was not made public. The Crown tendered, in the cross examination of the accused, the Transcontinental Newspaper published on 4 March 1998. That newspaper reported this crime but did not report that money had been stolen or the amount. The newspaper report simply referred to an undisclosed amount of property being stolen.
BSC’s account of the conversation was accurate in the sense that it described the crime and gave information which could only have been known to the victim, the Police or someone who had committed the crime or someone who had received information from the victim, the Police or the persons who had committed the crime.
BSC could not have obtained the information from AC or EB because he said he does not know them. He could not have obtained the information from KH because he never had anything to do with KH unless the accused was present. It is highly unlikely that he would have received the information from either the victim or the Police.
The only other person from whom he could have obtained the esoteric information to which I have referred was from the person who committed the crime or someone else who had received the information from the perpetrator, independent of all of the parties to whom I have referred. There was no suggestion of that.
In cross examination, BSC explained why he had not gone to the Police. He had not wanted to because he was worried about the repercussions. His evidence indicates that he believed that there would be serious repercussions to the accused if he was to go to the Police. In those circumstances he did not.
It was put to BSC that the accused had borrowed and not returned some CDs and a T-shirt and that BSC had become annoyed with the accused because of that. BSC frankly conceded that he was annoyed with the accused about the accused not returning CDs and the T-shirt and also by the accused taking one or two CDs without asking. He believed that the accused had stolen a couple of CDs from him.
It was put to BSC that the conversation which he had recounted never took place at all. In answer to that BSC said; “It definitely did” and that he could remember it clearly and he could remember what happened. He said that he was telling the truth.
I was impressed by BSC, as a witness. Whilst I acknowledge that he became upset and disillusioned with the accused in relation to the accused’s failure to return borrowed items and perhaps stealing other items I do not believe that he invented his evidence out of spite. I do not believe in fact that he invented his evidence at all.
The conversation has elements of esoteric knowledge which he must have learned from someone who was closely connected with the commission of the offence or the offenders. AC and EB can be excluded as the source of information and so can KH.
I accept that the conversation took place in the circumstances deposed to by BSC.
The Crown called KH who was also a minor at the time of the commission of these offences. On the day prior to his giving evidence he pleaded guilty in the Youth Court in Adelaide to the offence of robbery with violence of Mr Mayo on 24 February 1998. He was sentenced to six months detention but the sentence of detention was suspended on him entering into a bond to be of good behaviour for a year.
He said that he had no previous convictions.
He said that on the day in question he was drinking with the accused, who is his cousin. His mother and the accused’s father are brother and sister. Up until this time he and the accused were good friends.

On 24 February 1998, he and the accused were drinking with the accused’s parents, AC, EB, an uncle, CB, and an aunt, NT, at the accused’s place. CB and NT have a de facto relationship. NT is the aunt of the accused, KH, EB and AC. CB is the father of EB.
KH said that he got really drunk and that the accused also seemed to be affected by alcohol. He said they were staggering drunk.
He said that the two of them left the accused’s house with the intention of going to a friend’s house.
Instead they went to Mr Mayo’s house and stood near the window to Unit 8 at 1 Roberts Crescent. He said that both he and the accused knocked on the door. He saw Mr Mayo come to the door and, immediately after, he saw his cousin enter the premises. The accused pushed Mr Mayo. He did not see Mr Mayo fall. He remained outside whilst the accused went inside. He said he waited outside for about five or ten minutes but, I think, that is probably an over estimation of the time. He said that he was worried about what might be happening inside the unit but he could hear nothing and see nothing. Eventually he went inside and saw Mr Mayo on the floor, lying down resting on his side. There was blood on his chest and on his back. There was a lot of blood. He felt scared. He noticed the accused walking around the house. KH picked up the wallet and gave it to the accused. Whilst they were in the unit, AT said to Mr Mayo; “Where’s the money?”
KH said that he did not physically hurt Mr Mayo. He also said that he took no money nor received any money.
He did not see the accused stab Mr Mayo. What is clear, of course, is that he saw Mr Mayo, if his evidence is to be believed, lying in a pool of blood on the floor with blood apparently coming from his chest and his back. There was no one else inside the unit apart from himself and the accused.
He said he and the accused ran from Mr Mayo’s house back to 39 Hunter Crescent. When he arrived back at the house AC, EB and his uncle and aunt were still present. He said that ST was also present that night and he spoke to her before the incident at Mr Mayo’s house. He did not speak to her after that time. After he returned he went to the accused’s bedroom and stayed there.
About two weeks after this incident the witness went to live at Amata. AC and his girlfriend, Irene, also live at Amata. He described AC as being seventeen and fat. EB is twenty-one and of average build.
He agreed, in cross examination, that when he pleaded guilty to the offence of robbery with violence he anticipated giving evidence in this matter. He anticipated that if he gave evidence in this trial that he would receive a reduction in his sentence for doing so. He also knew that he had a better prospect of receiving a suspended sentence if he gave evidence in this trial. He also appreciated that if he failed to give evidence, in this trial, the sentence imposed in the Youth Court might be appealed.
It was put to him, in cross examination, that neither he nor the accused, went to Mr Mayo’s house that night. It was put to him that he and the accused went to Coles in the centre of Port Augusta before tea time. They then returned to Hunter Crescent where they had their tea. About an hour or so later, it was put, the accused and KH went to a house in View Street where a HT lives. While there waiting for HT, AC and EB walked across a park which is opposite Mr Thomson’s house. It was put to him and he agreed that he and the accused then spoke to EB and AC. He agreed that those two persons then left and sometime later the accused and KH also left.
It was then put to him that when he and the accused got close to Hunter Crescent they saw AC and EB running across the vacant block of land which is on the corner of Hunter Crescent and Roberts Crescent. KH denied that he had seen AC and EB running across the vacant block of land. He refused to accept that they saw EB and AC running across the vacant block of land. He said that when he went into the house he saw EB in the kitchen.
It was put to KH that AC and EB committed the crime. It was put to him that he had not been able to tell the Police that EB and AC committed the crime because he was frightened that they would bash him up. He denied that he had falsely pleaded guilty and falsely implicated the accused in the crime.
There are two matters in his evidence upon which comment should be made. The first is the timing when he and the accused went to HT’s place. Earlier in his cross examination he agreed that that was after tea then later in his cross examination he said it was before tea. In the end he said he could not remember. I am not able to make a finding as to exactly when it was that he and AT went to HT’s place in View Street. I am satisfied, however, that, at some stage, they did so. I am also satisfied that they waited there for some time but I am not able to determine the length of time they waited for HT to return home. I am also satisfied that whilst they were there, there was some short conversation between the accused and KH and EB and AC.
The other topic which may indicate an error on his part is in relation to a telephone call which the accused said he had with him whilst the accused was in Magill in Adelaide and KH was living in Amata. KH has no recollection of the conversation. It is the accused’s evidence that whilst he was in Magill on remand he telephoned Amata and spoke to his parents and relatives including KH, and during that conversation, the accused told KH to beware of AC and EB because they would be likely to bash him up.
I think that probably did happen. I think there probably was such a conversation. The reason why the accused was likely to warn KH is that, shortly before that time the accused had told the Police that in fact it was AC and EB who had committed this crime. In those circumstances if that became known to AC and EB they would have been likely to be quite angry.
Detective Senior Constable Smith gave evidence that he first had a conversation with KH in relation to this matter on 20 April 1998 and he was the first Police Officer who spoke to KH. He said KH was co-operative in the two interviews that took place.
He said that the only information he provided to KH was that he was investigating a home invasion stabbing at Port Augusta. KH then provided him with a detailed account of what had occurred.
The last person called for the Crown was Detective Senior Constable Michael. He gave evidence of his investigations and of two conversations he had with the accused on 12 April 1998. Those conversations took place before the first interview of KH on 20 April 1998.
The accused made no admissions in either of these interviews. He claimed that it was EB and AC who had committed these offences and neither he nor KH had anything to do with the matter.
There was some further evidence of the results of a search of the accused’s room and his house at 39 Hunter Crescent, Port Augusta. In that search a knife was found. That knife has been identified by JB and BSC as not being the knife which JB had sold and which BSC was shown in 1997 or 1998.
The evidence is clear enough that the accused did purchase a knife from JB and that knife was not in his possession at the time that the premises were searched a couple of months after these offences were committed.
There was also evidence that various articles of clothing were taken from the bedroom including two pairs of tracksuit pants. They were found wedged between the mattress and the bed. The accused said that they were kept under the mattress to keep the mattress level. He also said they were kept there so that one of his other cousins, from whom he had borrowed the track suit pants, would not ask for their return.
One of the pairs of tracksuit pants was consistent with the description of the tracksuit pants which Mrs Brewster said the two persons were wearing when they ran up Roberts Crescent.
Those pieces of evidence were consistent with the Crown case but did not advance the Crown case.
That was the case for the Crown. Boiled down the Crown case was that the accomplice, KH swore that the accused was present and that he saw the victim lying on his side covered in blood after the accused had invaded the victim’s house. He did not take any money but he saw the accused with the victim’s wallet. The Crown case was that the appellant had confessed to three of his cousins that he was the person who had committed the crime. Those confessions amounted to corroboration of the evidence of KH and, in those circumstances, the case was proved beyond reasonable doubt. The Crown case was that even without the evidence of KH the remaining evidence was sufficient to establish the case beyond reasonable doubt.

The Defence Case

The accused’s case was, in some but not in all respects, as had been put in cross examination to the various witnesses. There was one important matter of difference between the cross examination and the accused’s evidence which I shall mention.
The accused gave evidence. He claimed that he and KH had nothing to do with these crimes. He said that before tea on the day in question he and KH went into Port Augusta and went to Coles. Whilst there he examined his bank account but was unable to obtain any money. He said that he and KH returned to the accused’s place at 39 Hunter Crescent at about tea time. He had some alcohol with his tea and shortly after tea left again with KH to visit a HT, who lived in View Street. He said he and KH walked to View Street. They sat on HT’s fence waiting for his return. Whilst they were sitting on the fence they had a conversation with EB and AC. Those two men left and walked towards Roberts Crescent.
Sometime later, as HT had not returned, the accused and KH left View Street. They returned to Hunter Crescent. Whilst walking down Hunter Crescent they saw EB and AC running across the vacant block of land on the corner of Roberts Crescent and Hunter Crescent. All four of them entered the house but by different doors. KH, the accused said, went to his bedroom and lay down and went to sleep. He, on the other hand, started drinking with his uncle, aunt, mother and father and EB.
He said while drinking in the kitchen with his uncle CB, his uncle told him that AC told him that AC had stabbed someone. He told him that in a soft voice. The accused was shocked by that revelation.
The next day AC threatened that if he went to the Police or told anyone about what he and EB had done he would kick his and KH’s head in.
He said he did not have a conversation with FT nor did he have a conversation with BSC as deposed to by those witnesses. He gave evidence of disagreements he had had with those two witnesses.
He said, however, he did have a conversation with ST but during that conversation he did not say that “we” had committed crimes but that “they had”, meaning, in that conversation, that EB and AC had committed the crimes.
In that respect, his evidence differed from the cross examination of ST by his counsel. It had been put to ST that no conversation, of any kind, had taken place.
It was put to the accused, in cross examination, that his claim that there had been a conversation with ST, which she had misunderstood, was opportunistic on his part. It was put to him that in the cross examination of ST he saw that she was prepared to concede that the word “they” might have been used and that the accused was therefore responding to the window of opportunity opened by the cross examiner. The accused’s demeanour indicated that he was most uncomfortable with that suggestion.
The accused called CB. CB said that he was at the accused’s place on 24 February drinking with his de facto wife and the accused’s parents. He was a frequent visitor to that house; he went there every day. They drank a few cartons of beer. The accused and KH were also present, as was EB and AC. ST was not present. CB arrived at the house early in the morning and did not leave until the next day. He sat in the kitchen with his defacto and the accused’s parents. No one else drank in the kitchen. EB, AC, AT and KH drank beer on the back verandah.
As far as he was concerned they stayed on the back verandah all night. In cross examination he said he did not see EB leave at any time.
At one stage he noticed that AC had blood on him; on his shirt and pants. The blood was around the chest area and causing his T-shirt to stick to his shirt. He also had blood on the front of his pants. He did not see AC in a fight. Mr Brady was drunk when he made the observation.
Importantly, he was asked and answered:
“Q.... At some stage of that evening did you say anything to AT in relation to AC.
A...... No.”
He was not asked whether AC had told him anything about a stabbing.
The accused’s case therefore consisted of his assertion that he was told by CB that AC had committed these crimes. On the other hand CB said he did not say anything to the accused in relation to AC. Either the accused or his witness is incorrect about this matter.
Of course if the accused is incorrect and did not have a conversation with CB in relation to AC but did have a conversation with ST that night he could not have used the expression “they” unless someone else had told him of AC’s and EB’s involvement or if he acquired knowledge of their involvement in some other way.
The accused gave evidence on oath. He thereby exposed himself to cross examination which must have been stressful. He is only 18 years of age. I do not have evidence of the level of education he attained, but I can reasonably infer from his lifestyle that he has only had limited education. In assessing the accused’s evidence, I must not overlook his age, his limited education and his cultural background.
Mr CB, as could be expected, is a generation older than the accused. He, therefore, has the advantage of maturity which must not be overlooked. CB was, in my opinion, an honest witness. I believe his evidence when he said he did not have a conversation with the accused in relation to AC. I reject the accused’s evidence that he did have a conversation of the kind to which he deposed with CB. I reject his evidence because I do not believe he was telling the truth about that conversation. I therefore find that the accused was not told by CB that AC had stabbed someone.
If, as I have found, the accused did not have the conversation which he deposed to with CB then the accused could not have had a belief that AC or EB committed these offences on that night unless, of course, he was told that by some other person. There is no suggestion from the accused or from any other person that anyone else told the accused of the involvement of AC or EB.
Having rejected that evidence, I also reject the accused’s evidence that he had the conversation to which he deposed, with AC, the next day. I reject the accused’s evidence when he said that AC threatened to kick his and KH’s head in. There would be no need for such a conversation unless AC believed that the accused knew of AC’S involvement in the stabbing and robbery of Mr Mayo.
As I do not believe that anyone told the accused that AC or EB were involved in that affair, I do not believe the accused when he said that AC said what he said to him the next day.
The rejection of the accused’s evidence in relation to the conversation with EB also leads inevitably to the conclusion that he could not have said to ST that “they” had hurt someone or stabbed someone. There was no “they”.
Even taking into account the matters to which I previously referred, the accused was an unimpressive witness. He was agitated and uncomfortable in cross examination beyond that which one would expect in the circumstances. In the end I do not believe his evidence and I reject it because of its inherent incredibility.
Apart from his demeanour which told against him there were two items of evidence that demonstrated unreliability on the accused’s part.
The first was the claim in evidence in chief that he did speak with ST. That was as claimed opportunistic. Clearly his counsel had been instructed otherwise.
Secondly, the evidence of the conversation with CB. There is a complete contradiction between the evidence of uncle and nephew. I believe that CB told the truth. The accused’s evidence on that topic demonstrated his unreliability and markedly affected his credibility.
Of course, I remind myself that the accused was under no obligation to bring forward any defence or any explanation. The obligation to prove that the accused was guilty of these crimes remained upon the Crown notwithstanding the rejection of the accused’s evidence.
The rejection of the appellant’s evidence, of course, does not conclude the matter. I must then determine whether, on the evidence which I am prepared to accept, the Crown has proved its case beyond reasonable doubt in respect of the three offences for which the accused is charged.

Findings

A number of findings can be made without any real difficulty. I find that at some time after about 8.30pm on 24 February 1998 Cecil Mayo was attacked in his home unit at 8/1 Roberts Crescent, Port Augusta. Mr Mayo responded to a knock on his door and when he opened the doors of his unit he was pushed forcibly backwards and fell back on to his back in the doorway between the bedroom and lounge room. Whilst he was in a prone or semi prone position he was stabbed on five and perhaps six occasions. He suffered the wounds to which Dr Singh referred, one of which, I find, was life threatening.
Mr Mayo said in evidence in chief that the final wound was to the front of his chest. I am not, however, able to make a finding as to the order in which the wounds were inflicted. Mr Mayo agreed in cross examination that he could not be sure of the order in which he received the stab wounds. I therefore do not find that the life threatening wound to the front of the chest was the last wound received.
I find that the wounds were inflicted by a long knife wielded by a young male.
A second male also entered his unit. Mr Mayo threw his wallet across the room and he was robbed of $400 or more, which was taken from his wallet.
The unit was ransacked.
There can be no doubt that Mr Mayo was the victim of an armed robbery and I so find. He was also the victim of a very serious assault, the seriousness of which will be determined by reference to whether the Crown has established the requisite intention in relation to the offences charged.
I find that Mrs Brewster observed two males of part Aboriginal appearance running along Roberts Terrace, crossing over Roberts Terrace, running across the vacant allotment on the corner of Roberts Terrace and Hunter Crescent and running in the direction of 39 Hunter Crescent. I find that the persons observed by Mrs Brewster were responsible for the armed robbery of Mr Mayo.
In determining whether or not the Crown has established that it was the accused who inflicted the wounds and robbed Mr Mayo, it would be appropriate to commence with the evidence of KH. I accept his evidence as being truthful. I believe that he was a participant in the crime. I am not sure whether his participation was as minimal as he said but that does not matter. I believe him when he said that the accused was the person who stabbed Mr Mayo. Before addressing his evidence to determine whether the Crown has proved its case to the appropriate standard there are matters about which I ought to remind myself. Whilst KH was not charged with the same offences as the accused, he was an accomplice of the accused. On the day before he gave his evidence he pleaded guilty in the Youth Court to the offence of robbery with violence. At the time of entering his plea he informed the Court through his counsel that he intended to give evidence in this trial inculpating the accused. Counsel made that submission for the purpose of obtaining a reduction of KH’s sentence. He gave evidence in this Court knowing that if he failed to give evidence inculpating the accused the Crown would appeal from the sentence imposed in the Youth Court.

KH put himself, in his evidence, very much at the periphery of the crimes. He was not aware, so he says, that the accused was carrying a knife. He was not aware that they were going anywhere that night apart from a visit to a friend. On his evidence he took no part in the initial invasion of Mr Mayo’s home. He was not present when the accused stabbed Mr Mayo. He did not take any money nor receive any money from the proceeds of the crime.
He was not only an accomplice of the accused but a person who had received a benefit by giving this evidence. He also sought to excuse himself from the more serious aspects of the crime.
In carefully scrutinising KH’s evidence I must not only have regard to his being an accomplice but also to the fact that, on his own evidence, he was substantially affected by alcohol at the time. His intoxicated state has the potential to affect the reliability of his evidence. Drunken people are less reliable witnesses. They usually have impaired memories. They cannot remember detail. They can be subject to suggestion in their intoxicated state. I must not overlook the possibility that the witness might have been so confused by alcohol that he has an imperfect recollection of the events.
For all of those reasons it would be dangerous to convict the accused on the evidence of KH, unless KH’s evidence is corroborated.
There is in this case, evidence, which if accepted, would amount to corroboration. Even so, KH’s evidence requires very careful scrutiny because of all of the matters to which I have referred. I have given his evidence that careful scrutiny.
Even if there had been no corroboration, if after appropriate scrutiny I was satisfied that KH’s evidence was thoroughly reliable, I could still convict the accused if I was then satisfied that the offences were proved beyond reasonable doubt.
In this case however, there is evidence which could amount to corroboration.
If I am satisfied that the accused made the statements to BSC and to FT then there would be evidence which would amount to corroboration because that evidence would tend to confirm KH’s evidence in a material way and tends to show that his evidence is truthful. The evidence would confirm that the crime was committed and the accused was implicated in a material way. The evidence of ST is equivocal and not capable of corroborating KH’s evidence.
I have scrutinised the evidence of BSC and KH carefully. I am conscious that it is claimed that they lied and they both had reasons to lie. Whilst accepting that both had had disagreements with the accused I do not believe that those disagreements, in any way, motivated them to lie in this trial.
I accept the evidence of BSC and I am satisfied beyond reasonable doubt that he was told what he said. I also accept the evidence of FT that he was told by the accused that the accused had committed the crime. Both conversations with BSC and FT corroborate the evidence of KH. Both confirm the crime was committed and that the accused was implicated in a material way.
Even if there had been no corroboration I indicate that I was sufficiently impressed by KH’s evidence, notwithstanding his state of intoxication, to have reached the conclusion that it was thoroughly reliable and that it could be acted upon to the point where it was sufficient to prove beyond reasonable doubt the guilt of the accused.
I believe KH’s evidence. I believe that he did commit the offence of robbery with violence and I believe that it was appropriate for him to plead guilty to it. I reject as a reasonable possibility that KH has falsely admitted to committing this crime. I reject as a reasonable possibility that he has falsely pleaded guilty to committing this crime. I reject as a reasonable possibility that he has falsely claimed that the accused was the person who invaded Mr Mayo’s home with him on 24 February 1998.
There is evidence from both ST and CB that AC had blood on his clothes that night. I do not believe that the blood was Mr Mayo’s. I am satisfied that the blood came from another source. The fact of the blood, when taken with the evidence as a whole, does not give rise to a reasonable possibility that AC was the man who stabbed Mr Mayo. It does not raise a reasonable doubt of the guilt of the accused.
I am satisfied beyond reasonable doubt that it was the accused who first invaded Mr Mayo’s home. It was the accused who pushed Mr Mayo backwards causing him to fall to the floor. It was the accused who armed with a knife then stabbed Mr Mayo on five occasions causing the wounds deposed to by Dr Singh. I am not sure how the wound was caused to Mr Mayo’s left arm, but that does not matter much. In any event and more particularly I am satisfied to the level of satisfaction required that it was the accused who stabbed Mr Mayo in the front of his chest near the heart, inflicting a wound which was life threatening.
I am further satisfied that the accused took the sum of $400 from Mr Mayo’s wallet and I am further satisfied that the accused and KH decamped as deposed to by both KH and Mrs Brewster.
It follows inevitably from that, that the Crown has established beyond reasonable doubt that the accused was guilty of armed robbery. He was armed with an offensive weapon and, by the use of violence, he robbed Mr Mayo of $400.
That leaves the question of whether or not the Crown has established either of the other offences.
If I accept KH’s evidence, which I do, it follows inevitably, in my opinion, that I ought to conclude that both he and the accused were substantially affected by alcohol. KH’s evidence was that he began drinking in the late afternoon of 24 February 1998 and he had enough by the time he left Hunter Crescent to be really drunk. He said the accused also started drinking at the same time and seemed to be in the same condition as himself. He described them both as staggering drunk.
I find that both KH and the accused were substantially affected by alcohol at the time of the commission of these offences.
The fact that KH was affected by alcohol bears upon the reliability of his evidence. However, notwithstanding that he was affected by alcohol I believe his evidence can be accepted.
I do not believe that the accused was so intoxicated that he was incapable of performing a voluntary act or forming an intention. I have directed myself on the affect of intoxication on the exercise of the accused’s will and the forming of an intention. There is no doubt that the acts including the stabbing of Mr Mayo were performed voluntarily. I also believe that notwithstanding that the accused was intoxicated he was able to form a general intention and the specific intention which I shall mention. The accused left the house with a knife. He went to the victim’s unit. He knocked on the door. The evidence is clear that the accused was able to react to Mr Mayo opening the door by pushing Mr Mayo backwards. Whilst assaulting Mr Mayo he told him he had been after him for a long time. He asked him for his money. He was then able to wield a knife with sufficient coordination to inflict wounds upon Mr Mayo. He was then able to ransack the house and to take money. More importantly he was then able to run away with KH from the unit. He behaved in a way and showed more than sufficient coordination to satisfy me that he was not so intoxicated so as not to be able to form an intention.
That leaves as a final matter whether or not the Crown has established beyond reasonable doubt that the accused formed the intention to kill, which is a necessary element of the offence of attempted murder.
In support of her submission Ms McDonald, counsel for the Crown, directed me to Dr Singh’s evidence and in particular the evidence relating to the wound in the front of the chest. There is no doubt that that wound was life threatening. If a little more force had been applied the wound might have proved fatal.
Ms McDonald submitted that the Crown need only prove that at the time the wound was inflicted the accused had an intention to kill. That is so.
However, I believe that there is another hypothesis which reasonably arises. The wounds were caused in circumstances where the accused was asking Mr Mayo to hand over his money. It seems to me that it was a reasonable possibility that the wounds were inflicted to frighten Mr Mayo so as to induce him to hand over his money rather than with an intention to kill. The inference that the accused intended to kill would be more easily drawn if the accused was sober. However, in my opinion the Crown has not excluded as a reasonable possibility an intention to wound rather than an intention to kill.
In those circumstances I am not satisfied beyond reasonable doubt that the accused is guilty of the first count.
I am satisfied however that Mr Mayo suffered really serious bodily injury and that the wounds were inflicted for the purpose of causing grievous bodily harm. I am satisfied that all of the elements of the offence of wounding with intent to do grievous bodily harm have been made out. In those circumstances the accused must be convicted of the second charge.
For the reasons I have already given, the accused must also be convicted in relation to the third charge.
The verdicts of the court will be therefore:
(1) Count 1 - not guilty
(2)... Count 2 - guilty
(3)Count 3 - guilty.

[1999] SASC 100

12 March 1999